Let's talk about open source software

In Episode 16 of the Canadian IP Voices podcast, we talk about open source software and licensing with Jules Gaudin, a lawyer at ROBIC who specializes in intellectual property (IP) and technology law. Listen to this episode to learn more about the features, commercialization, best practices and pitfalls of using open source software.

As a follow-up to that discussion, this blog explores the relationship between copyright and open source software, and why it should be protected.

What is open source software?

When a software creator prevents the use, modification or exploitation of their software by third parties, the software is said to be proprietary since it is "closed". As you may have guessed, open source software allows free use to users so that they can exploit, modify or redistribute the software. Hence the importance of the licence.

A licence is a type of contract that serves to control the use of a product or service. If a third party seeks to acquire a licence in order to exploit a source code from an owner, they must pay particular attention to the terms of the licence since it delimits the scope of their rights of use. Whatever open source software you plan to use, be sure to read the licence terms.

The benefits of open source software

Open source software continues to generate a lot of interest because of its many benefits to its programmers and users:

  1. It is very cost effective. The user does not have to pay a licence fee to operate, modify or redistribute the software. It can also reduce the cost of producing source code for a company's internal programmers.
  2. The community aspect is the great advantage of open source software. Its power lies in the collective generation of ideas and the continuous work to improve the software. The programmers who participate in the development of such software often benefit from the support and exchange of a large community, more quickly and efficiently than if the work had to be done by a single team within a company.
  3. Because many people check the code, computer bugs are identified and resolved more efficiently. Companies that create and distribute open source software are completely transparent as they openly share their source code. As a result, a bond of trust is established with users, which gives a significant advantage over competitors in this market.

The disadvantages

One cannot discuss the advantages without considering the disadvantages of using open source software:

  1. Some licences for some open source software may generate IP risks. With copyleft licences, open source software can be freely exploited, modified and distributed on a reciprocal basis. Therefore, the distribution of any modified version of the software must be done under the same terms as an open source licence. This is problematic for users who only want to use some of the features offered by the software, and who must therefore release their entire proprietary code for free, thereby losing the right to exclude third parties.
  2. Because of the community aspect of open source software, if members of a community lose interest in the project, the software is abandoned. If the source code is no longer adequately updated, this can compromise its reliability and security. Since there is no verification of the quality of changes, it is the user's responsibility to ensure that the system is secure and updated systematically.
  3. When a user exploits different pieces of open source software and combines them, licence conflicts may arise. The user should pay special attention to the restrictions and different terms of the licences, since they may be confronted with a situation where, by combining 2 or more source codes from different software, it is impossible to comply with all the terms of use, because they would conflict with each other. In such a case, the user is liable for breach of contract that may lead to serious legal consequences.

Open source software and copyright: what is the link?

Copyright protects the source code of software as a literary work and excludes any other individual from exploiting its source code. In the case of a work, the copyright owner is granted the exclusive right to do the following: produce, reproduce, publish and perform the work.

In the world of business technology, copyright can therefore apply to software source code, web interfaces, graphics and databases, among others.

Rights and obligations under different types of licences

No matter what open source software you use, your use of this software will be subject to the terms of the licence.

The most widely used open source licence is the MIT licence. This licence, which contains only 172 words, is considered the most popular because of its simplicity: it contains only 2 conditions. First, the copy of the code must contain the original copyright notice and a copy of the MIT licence. Second, the owner can protect the modified version of the software that they create and redistribute.

Conversely, there is the copyleft licence. This type of licence also provides free permission for software, but with one exception: redistribution of any modified software must be on the same terms as the original software, i.e. for free.

Is it possible to commercialize open source software?

Yes, as Jules Gaudin says, "It's not because [open source software] is available for free that no one can make money out of it. Nothing in an open source licence, at least with the criteria that we discussed, would prevent you from selling an open source software."

There are many ways for an open source programmer to generate revenue. Jules raises some of them:

  • The programmer may charge a fee for their services, expertise, and support, such as providing training or assistance in installing and using the software.
  • Some open source software projects will allow the user to use the software on their own server at no cost, but the owner will charge a fee for using a hosted version. The user may be tempted to choose the hosted version to avoid long-term server maintenance.
  • The programmer may charge for adding specific features to existing products. Jules gives an example: "You can have a text editor that is available for free for everyone under an open source licence, but at the same time, you think, 'Okay, but I need to integrate a very specific feature for automated transcription of text or video.' […] You'll pay [the programmers]. They'll develop a proprietary plugin that you can insert in your software, giving you access to these new features".
  • You can get help through sponsorship deals with GitHub, a platform that allows you to distribute open source software. GitHub can help people and companies by offering to sponsor their projects.
  • You can get a dual licence. The software is licensed under both a proprietary licence and an open source licence to combine the revenue associated with using a proprietary licence with the benefits that result from the community aspect of an open source licence.
  • The knowledge gained by an open source software developer can be highly sought after in the job market. Indeed, many employers are regularly looking for programmers who have experience in the production of open source software.

What are the best practices?

According to Jules, there are 4 best practices to adopt when considering including open source software in a project:

1. Establish an internal open source software policy

"The first one, and usually the biggest one, is to create and establish an open source policy. And it should always be tailored to the reality of your company. It means you need to review what you are currently doing internally with open source. Are developers using it? Is it something that's been prevalent?" This policy should be simple and practical, according to Jules.

2. Create a list of pre-approved licences

Jules recommends creating a list of licences that are pre-approved for use. As an example, the list could pre-approve MIT licences for which use does not require permission. "The policy is usually the biggest of the work, but once it's done, you usually have a clear picture as to what is being done [with open source software] and what can be done in the future."

Thus, the approval process is simplified since employees don't have to read a policy that is excessively long and complex.

3. Create and maintain an open source code registry

Jules goes on to say that "You should create and maintain an open source registry where you list all of the open source elements and software that you are using, the versions that you are using, where it can be downloaded […]".

This process simplifies the collection of data on open source software and the various licences used by a company. In addition, this registry is essential for rapid analysis and to avoid "accidental open source contamination". This contamination occurs when new code is mistakenly believed to be proprietary when in fact it is to be distributed for free. This kind of mistake could even lower the value of a company.

4. Make regular updates

Open source software should be updated regularly. It is the user's responsibility to do so, unlike proprietary software. To counter cyber security risks, use the latest version of a software.

To learn more about the different types of open source licences, visit the Choose an open source license website. To start your own open source software project or contribute to the open source community, visit the Open Source Guides website.

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